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Thursday, February 14, 2008

The Way to Win

Analysis by Mark Mayhey reporting from London, UK

Losing the piracy war?

One of Tarkan's customary airport sound bytes caught my attention the other day. On his way to the US to celebrate the honorary day of Cupid New York style, the artist made mention of Internet piracy.

His remark might have been off-the-cuff, but it reminded me of the current situation in the UK, when word got out that the government is proposing legislation to cut off internet access for users who download pirated material, the net-using public sat up and paid attention.

The recent government green paper suggests that internet service providers (ISPs) be made responsible for ensuring that their customers are not illegally downloading copyrighted material. The paper outlines a 'three-strike' system for dealing with offenders: a user would be e-mailed a warning for their first offence, have their account suspended for a second, and then have their contract terminated if they are caught a third time.

There is an estimated six million illegal downloaders in the UK, and the numbers in Turkey are rising monthly. With stricter penalties being envisaged, can anyone foresee a piracy-free future for either nation in the long term?

Losing the War?

As the music, film and game industries are keen to tell you, piracy is indeed widespread and on the rise. The IFPI, the international music trade body, reports that tens of billions of illegal copies of songs were downloaded in 2007 alone – around 20 illegal tracks for every legal version sold.

There isn't room enough in a single article to rehash all the arguments condemning (or defending) piracy in general, but suffice it to say that internet piracy is big. It is big enough to have drawn the ire of the digital entertainment industries, and subsequently that of governments worldwide. With this in mind, what is the potential value of anti-piracy legislation under consideration in the UK, and is it a lead that Turkey is destined to follow?

Firstly, there are some serious issues of practicality with the kind of legislation proposed by the government. This legislation would charge UK internet providers with monitoring and policing their customers in a manner that is nigh on infeasible.

When accusing a customer of piracy, an ISP would presumably be required to prove that the supposedly offending bill payer really did download the content themselves. Unprotected, under-protected or freely shared wireless internet connections could make obtaining solid proof very difficult.

More significantly, differentiating between legal and non-legal downloads would be far from straightforward for internet providers. The data that makes up a legitimately downloaded file is not intrinsically different to the data of pirated files, making it tricky for ISPs to determine who is downloading illegal content and who is not. It is not clear how ISPs are supposed to spot the difference between the downloading of a pirated album and the downloading of, say, a garage band’s freely distributed MP3s. Neither is it obvious how ISPs could distinguish the peer-to-peer file sharing of pirated software from the sharing of open source software like Linux.

Enablers of internet piracy are here to stayWhatever their motivations, the enablers of internet piracy – those who produce the copies, create the software, host the sites and crack the anti-piracy devices that allow the illegal sharing of copyrighted files – are tenacious creatures. The kind of 'crackdown' that this legislation represents would merely pose a new technical challenge to be overcome, like any number of previously defeated anti-piracy initiatives. Depending on the ISPs' approach to sniffing out illegal downloads, various methods (clever encryption, the switching of ports) might be employed to hide such activity from ISPs – making the matter of spotting offenders tougher and the enforcement of these proposals even less feasible.

Practical considerations aside, there is the critical matter of internet users' privacy. The Internet Service Providers Association (ISPA) rightly contends that data protection laws would prohibit them from inspecting the content of their users' downloads. "Internet providers are no more able to inspect and filter every single packet passing across their network than the Post Office is able to open every envelope," argued an ISPA representative.

So if this new anti-piracy legislation is to be enforced, wouldn't data protection laws need to be changed to allow ISPs to do so? If that is the case, we could be looking at a slippery slope of eroding individuals' privacy to protect the interests of media giants – or potentially for more nefarious purposes.

If the government were to enable (and require) ISPs to closely inspect what their users are doing on the internet, they would be taking a first step down what could become a dark and sinister road. In China the law permits an extreme degree of internet policing and censorship: this includes watching for controversial keywords entered by the internet user, along with the reverse scanning of the user by their ISP when particular content is accessed. Creating or altering privacy laws for initially 'innocent' purposes (that is, the prevention of admittedly illegal downloads) might set a precedent we would come to sorely regret. Alongside this, with so many issues regarded as sensitive in Turkey for example, there is the danger this could become just another tool for censorship that ultimately penalises the end-user and not the pirates themselves.

Educating End-Users to Reward Creativity

Tarkan topping sales and airplay chartsThe key to win the war against piracy is to get the most important link to the chain on the side of the artists - the music loving public. This will be achieved through education, not punitive legislation that veers dangerously close to imposing on people's privacy. It will also be achieved through the artists themselves embracing digital platforms to bounce their creative works off from.

With the release of his Metamorfoz album in 2007, Tarkan showed great (and rare in terns of the net) foresight in backing TTNetMüzik's campaign for legal downloads of Turkish music catalogues online. This is a true step forward for the Turkish music industry. Now that sales of Tarkan's album has loosened the choke-hold many thought piracy had on the industry, and renewed confidence in the market, the other step will be for Turkish artists to get brave and start creating again, as the Turkish pop icon has done. Currently, most major mainstream artists are playing it safe and relying on their past successes, for example bad-boy rocker Teoman, whose latest "effort" is nothing but a compilation of his previous chart hits sung by various artists. A perfect candidate for piracy if I ever saw one, music lovers rarely want to hand over money for songs they already know unless the production adds new twists.

Piracy Won't Die, But Neither Will the Industry

As it looks that such legislative moves like the ones proposed by the UK are going to be ineffective and virtually unenforceable at best, dangerous at worst, it is safe to say that legal anti-piracy measures simply aren't going to kill internet piracy. However, frankly I don't think that piracy will kill the digital entertainment industries either. Even with a reported 10% drop in global music sales between 2006 and 2007, music sales were still 26% higher than a decade previously, despite the growth of internet piracy. Taping songs off the radio didn't destroy the music industry as was once feared – neither will downloads.

The way to win is to educate - and create.

The views in this article are those of the author alone.
Read more Mark Mayhey articles on Tarkan >>

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